McDonald v. Dudek

100 A.D.2d 839, 473 N.Y.S.2d 841, 1984 N.Y. App. Div. LEXIS 17945

Opinion

In an action to recover damages for personal injuries, etc., plaintiff appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), entered June 9, 1983, which denied his motion for partial summary judgment against defendant Stanley Dudek. I Order affirmed, with costs. H The affidavit in support of the motion for pártial summary judgment against defendant Dudek failed to rule out the existence of triable issues of fact. In the absence of a sufficient affidavit in support of the motion, the failure of Dudek himself to supply an affidavit in opposition cannot be the basis for granting summary judgment to the plaintiff (Coley v Michelin Tire Corp., 99 AD2d 795). Mangano, J. P., Gibbons, Weinstein and Niehoff, JJ., concur.